[Introduced March 5, 2013; referred to the Committee on Labor;
and then to the Committee on Finance .]

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A BILL to amend and reenact §21-5A-5 of the Code of West Virginia,
1931, as amended, relating to providing that the prevailing
hourly rate of wages as determined by the Division of Labor
may not exceed the wage as determined by the federal
Davis-Bacon Act for a given locality.Be it enacted by the Legislature of West Virginia:
That §21-5A-5 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:ARTICLE 5A. WAGES FOR CONSTRUCTION OF PUBLIC IMPROVEMENTS.§21-5A-5. Prevailing wages established at regular intervals; how
determined; filing; objections to determination;
hearing; final determination; appeals to board;
judicial review. (1) The department of laborDivision of Labor, from time to time, shall investigate and determine the prevailing hourly rate of
wages in the localities in this state. Determinations thereof
shall be made annually on January one1 of each year and shall
remain in effect during the successive year: Provided, however,
That such rates shall not remain in effect for a period longer than
fifteen months from the date they are published.
In determining such prevailing rates, the department of labor
mayDivision of Labor shall ascertain and consider the applicable
wage rates established by collective bargaining agreements, if any,
and such rates as are paid generally within the locality in this
state where the construction of the public improvement is to be
performed. Notwithstanding any other provision in this code to the
contrary, the methodology used for calculating the prevailing rate
may not exceed the rate established by the Davis-Bacon Act, 40
U.S.C. §§3141-3148, for the same locality.
(2) A copy of the determination so made, certified by the
secretary of the board, shall be filed immediately with the
Secretary of State and with the department of laborDivision of
Labor. Copies shall be supplied to all persons requesting same
within ten days after such filing.
(3) At any time within fifteen days after the certified copies
of the determination have been filed with the Secretary of State
and the department of laborDivision of Labor, any person who may
be affected thereby may object in writing to the determination or such part thereof as he or she deems objectionable by filing a
written notice with the department of laborDivision of Labor
stating the specific grounds of the objection.
(4) Within ten days of the receipt of the objection, the
department of laborDivision of Labor shall set a date for a
hearing on the objection. The date for the hearing shall be within
thirty days after the receipt of the objection. Written notice of
the time and place of the hearing shall be given to the objectors
at least ten days prior to the date set for the hearing and at a
time so as to enable the objectors to be present.
(5) The department of laborDivision of Labor at its
discretion may hear such written objection separately or
consolidate for hearing any two or more written objections. At the
hearing the department of laborDivision of Labor shall introduce
into evidence the results of the investigation it instituted and
such other facts which were considered at the time of the original
determination of the fair minimum prevailing hourly rate including
the sources which formed the basis for its determination. The
department of laborDivision of Labor or any objectors thereafter
may introduce such further evidence as may be material to the
issues.
(6) Within ten days of the conclusion of the hearing, the
departmentDivision of Labor must rule on the written objections
and make such final determination as shall be established by a preponderance of the evidence. Immediately upon such final
determination, the department of laborDivision of Labor shall file
a certified copy of its final determination with the Secretary of
State and with the department of laborDivision of Labor and shall
serve a copy of the final determination on all parties to the
proceedings by personal service or by registered mail.
(7) Any person affected by the final determination of the
department of laborDivision of Labor, whether or not such person
participated in the proceedings resulting in such final
determination, may appeal to the board from the final determination
of the department of laborDivision of Labor within ten days from
the filing of the copy of the final determination with the
Secretary of State. The board shall hear the appeal within twenty
days from the receipt of notice of appeal. The hearing by the board
shall be held in Charleston. The hearing by the board shall be
upon the record compiled in the hearing before the department of
laborDivision of Labor and the board shall have the authority to
affirm, reverse, amend, or remand for further evidence, the final
determination of the department of laborDivision of Labor. The
board shall render its decision within ten days after the
conclusion of its hearing.
(8) Any party to the proceeding before the board or any person
affected thereby may within thirty days after receipt of the notice
of its decision, appeal the board's decision to the circuit court of the county wherever the construction of a public improvement is
to be performed, which shall consider the case on the record made
before the commissioner of labor and before the board. The
decision of such circuit court may be appealed to the Supreme Court
of Appeals of West Virginia by any party to the proceedings or by
any person affected thereby in the manner provided by law for
appeals in civil actions.
(9) Pending the decision on appeal, the rates for the
preceding year shall remain in effect.

NOTE: The purpose of this bill is to provide that the
prevailing hourly rate of wages as determined by the Division of
Labor may not exceed the wage as determined by the federal
Davis-Bacon Act for a given locality.

Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.